You ask whether certain information is subject to required public disclosure under chapter
552 of the Government Code. Your request was assigned ID#132360.

The City of Plano (the "city") received two requests for all written proposals submitted to
the city pertaining to its J.D. Edwards One World Project. You assert that some of the
requested information should be withheld from disclosure under sections 552.101 and
552.110 because you say it "may contain confidential information, proprietary information
or commercial or financial information."(1)

Section 552.301(d) provides that a governmental body that requests an attorney general
decision must provide to the requestor not later than the 10th business day after the date of
receiving the request a written statement that the governmental body wishes to withhold the
information and that it has asked for a decision from the attorney general and a copy of the
governmental body's written communication to the attorney general asking for a decision.

The city received the requests for information on December 1 and 10, 1999, but apparently
did not notify the requestors of the city's request for an attorney general opinion until
January 7, 2000.

When a governmental body does not timely notify the requestor within ten business days of
receiving a request for information, the information at issue is presumed public. Gov't Code
§ 552.302; Hancock v. State Bd. of Ins., 797 S.W.2d 379 (Tex. App.--Austin 1990, no writ);
City of Houston v. Houston Chronicle Publ'g Co., 673 S.W.2d 316, 323 (Tex.
App.--Houston [1st Dist.] 1984, no writ); Open Records Decision No. 319 (1982). The
governmental body must show a compelling interest to withhold the information to
overcome this presumption. See id. Normally, a compelling interest is that some other
source of law makes the information confidential or that third party interests are at stake.
Open Records Decision No. 150 at 2 (1977). The applicability of section 552.110 may
present a compelling reason to overcome the presumption of openness.

Since the property and privacy rights of third parties may be implicated by the release of the
requested information, you notified those parties whose information is responsive to the
request. See Gov't Code § 552.305 (permitting interested third party to submit to attorney
general reasons why requested information should not be released); Open Records Decision
No. 542 (1990) (determining that statutory predecessor to Gov't Code § 552.305 permits
governmental body to rely on interested third party to raise and explain applicability of
exception in Public Information Act in certain circumstances). Section 552.305(d)(1)
requires that a governmental body that requests an attorney general decision under section
552.301 must make a good faith attempt to notify third parties of the request for information
in writing not later than the 10th business day after the date the governmental body receives
the request for the information. We again note that the city received the requests for
information December 1 and 10, 1999. However, the city did not notify each of the third
parties whose property and privacy interests may be implicated until January 7, 2000.

Notwithstanding, the city's failure to comply with the notice requirements of section
552.305, Sirius Computer Solutions, Inc. ("Sirius") responded to the city's notice by
submitting its arguments to this office in a timely manner. Sirius asserts that its proposal
contains confidential and proprietary information which should be excepted from disclosure
under section 552.110. However, the remaining companies have not submitted arguments
for withholding or releasing the information as required under 552.305(d). Therefore, we
have no basis to conclude that the remaining companies' proposals are excepted from
disclosure by section 552.110. See Open Records Decision Nos. 639 at 4 (1996) (to prevent
disclosure of commercial or financial information, party must show by specific factual or
evidentiary material, not conclusory or generalized allegations, that it actually faces
competition and that substantial competitive injury would likely result from disclosure),
552 at 5 (1990) (party must establish prima facie case that information is trade secret),
542 at 3 (1990). The proposal information for AMX International, Data Systems
International, Plutus Enterprises, perotsystems and Deloitte and Touche must, therefore, be
released to the requestor.

Sirius argues that the "Methodology Information," "Customer/Employee Information" and
the "Third Party Project Information" (the "Proposal Information") in its October 8, 1999

proposal are excepted from disclosure under section 552.110 of the Government Code.
Section 552.110 protects the property interests of private persons by excepting from
disclosure two types of information: (a) trade secrets obtained from a person and privileged
or confidential by statute or judicial decision, and (b) commercial or financial information
for which it is demonstrated based on specific factual evidence that disclosure would cause
substantial competitive harm to the person from whom the information was obtained. Sirius
has made arguments against disclosure under both branches of section 552.110.

First, we address whether the Proposal Information is excepted from disclosure under the
trade secret branch of section 552.110. The Texas Supreme Court has adopted the definition
of trade secret from section 757 of the Restatement of Torts. Hyde Corp. v. Huffines,
314 S.W.2d 763 (Tex.), cert. denied, 358 U.S. 898 (1958); see also Open Records Decision
No. 552 at 2 (1990). Section 757 provides that a trade secret is

any formula, pattern, device or compilation of information which is
used in one's business, and which gives him an opportunity to obtain
an advantage over competitors who do not know or use it. It may be
a formula for a chemical compound, a process of manufacturing,
treating or preserving materials, a pattern for a machine or other device,
or a list of customers. It differs from other secret information in a
business . . . in that it is not simply information as to single or
ephemeral events in the conduct of the business . . . . Atrade secret is
a process or device for continuous use in the operation of the
business. . . . [It may] relate to the sale of goods or to other operations
in the business, such as a code for determining discounts, rebates or
other concessions in a price list or catalogue, or a list of specialized
customers, or a method of bookkeeping or other office management.

Restatement of Torts § 757 cmt. b (1939). In determining whether particular information
constitutes a trade secret, this office considers the Restatement's definition of trade secret
as well as the Restatement's list of six trade secret factors.(2)Id. This office has held that if
a governmental body takes no position with regard to the application of the trade secret
branch of section 552.110 to requested information, we must accept a private person's claim
for exception as valid under that branch if that person establishes a prima facie case for
exception and no argument is submitted that rebuts the claim as a matter of law. Open
Records Decision No. 552 at 5-6 (1990).

We have reviewed Sirius' arguments and conclude that Sirius has made a prima facie
showing that certain portions of the Proposal Information are trade secret information for
purposes of section 552.110(a). We have marked the information that is excepted as a trade
secret under section 552.110(a), and therefore, must be withheld from disclosure.

We next address whether any of the Proposal Information that is not excepted as trade secret
is excepted from disclosure under the commercial or financial branch of section 552.110.
The commercial or financial branch of section 552.110 requires the business enterprise
whose information is at issue to make a specific factual or evidentiary showing, not
conclusory or generalized allegations, that substantial competitive injury would result from
disclosure. See Open Records Decision No. 661 (1999). We have reviewed Sirius'
arguments and the remaining Proposal Information at issue. In our opinion, Sirius has not
shown, based on specific factual evidence, that disclosure of the remaining Proposal
Information would cause "substantial competitive harm" to Sirius. Accordingly, the
remaining Proposal Information at issue may not be withheld under section 552.110(b). See
Open Records Decision No. 309 (1982). The city must release the remaining Proposal
Information to the requestor.

This letter ruling is limited to the particular records at issue in this request and limited to the
facts as presented to us; therefore, this ruling must not be relied upon as a previous
determination regarding any other records or any other circumstances.

This ruling triggers important deadlines regarding the rights and responsibilities of the
governmental body and of the requestor. For example, governmental bodies are prohibited
from asking the attorney general to reconsider this ruling. Gov't Code § 552.301(f). If the
governmental body wants to challenge this ruling, the governmental body must appeal by
filing suit in Travis County within 30 calendar days. Id. § 552.324(b). In order to get the
full benefit of such an appeal, the governmental body must file suit within 10 calendar days.Id. § 552.353(b)(3), (c). If the governmental body does not appeal this ruling and the
governmental body does not comply with it, then both the requestor and the attorney general
have the right to file suit against the governmental body to enforce this ruling.
Id. § 552.321(a).

If this ruling requires the governmental body to release all or part of the requested
information, the governmental body is responsible for taking the next step. Based on the
statute, the attorney general expects that, within 10 calendar days of this ruling, the
governmental body will do one of the following three things: 1) release the public records;
2) notify the requestor of the exact day, time, and place that copies of the records will be
provided or that the records can be inspected; or 3) notify the requestor of the governmental
body's intent to challenge this letter ruling in court. If the governmental body fails to do one
of these three things within 10 calendar days of this ruling, then the requestor should report
that failure to the attorney general's Open Government Hotline, toll free, at 877/673-6839.
The requestor may also file a complaint with the district or county attorney.
Id. § 552.3215(e).

If this ruling requires or permits the governmental body to withhold all or some of the
requested information, the requestor can appeal that decision by suing the governmental
body. Id. § 552.321(a); Texas Department of Public Safety v. Gilbreath, 842 S.W.2d 408,
411 (Tex. App.-Austin 1992, no writ).

If the governmental body, the requestor, or any other person has questions or comments
about this ruling, they may contact our office. Although there is no statutory deadline for
contacting us, the attorney general prefers to receive any comments within 10 calendar days
of the date of this ruling.

1. Previously, the city submitted to this office its first request for a decision regarding the information contained in the original proposals it received pertaining to its J.D. Edwards One World Project. This office issued Open Records Letter No. 2000-0169 which addressed the original proposal information. Subsequent to submitting its first request for a decision, the city received six supplemental proposals. This ruling only addresses the information contained in the supplemental proposals.

2. The six factors that the Restatement gives as indicia of whether information constitutes a trade secret are: "(1) the extent to which the information is known outside of [the company]; (2) the extent to which it is known by employees and others involved in [the company's] business; (3) the extent of measures taken by [the company] to guard the secrecy of the information; (4) the value of the information to [the company] and [its] competitors; (5) the amount of effort or money expended by [the company] in developing the information; (6) the ease or difficulty with which the information could be properly acquired or duplicated by others." Restatement of Torts § 757 cmt. b (1939); see also Open Records Decision Nos. 319 at 2 (1982), 306 at 2 (1982), 255 at 2 (1980).